STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, )

PINELLAS COUNTY SHERIFF )

)

Petitioner, )

)

vs. ) CASE NO. 96-0019

)

BRENDA BARNETT, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 7, 1996, a formal administrative hearing was held in this case in Clearwater, Florida, before Carolyn S. Holifield, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: James M. Craig, Esquire

ALLEY AND ALLEY/FORD AND HARRISON

205 Brush Street Post Office Box 1427

Tampa, Florida 33601

For Respondent: Lawrence A. Jacobs, Esquire

Feathersound Place

2727 Ulmerton Road, Suite 2

Clearwater, Florida 34622 STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the termination notice and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By memorandum dated June 20, 1995, Petitioner, Everett Rice, Pinellas County Sheriff, charged that Respondent, Brenda Barnett, violated the Pinellas County Sheriff's Office Civil Service Act, Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Laws of Florida, and various rules and regulations of the Pinellas County Sheriff's Office (PCSO). Specifically, Respondent was charged with conduct unbecoming a public servant and violating rules relating to loyalty, association with prisoners, and knowledge of and obedience to laws, rules, and regulations.

Respondent challenged the decision and timely requested a formal hearing. By letter dated December 28, 1995, the matter was referred to the Division of Administrative Hearings for appointment of a hearing officer.

At hearing, Petitioner presented the testimony of five (5) witnesses: Respondent, Brenda Barnett; Major Kenneth L. Remming, Commander of Inspections, PCSO; Major Harold Wilber, Commander of Detention Center, PCSO; David Howsare, Detention Deputy, PCSO; and Sergeant Daniel Buckingham, Detention Investigations Unit, PCSO. Petitioner had three exhibits admitted into evidence.

Respondent testified on her own behalf and presented the testimony of four other witnesses: James Derenzo, Detention Deputy, PCSO; Adrian Nenu, Detention Deputy, PCSO; Lieutenant Krista Rauch, Supervisor, South Division, PCSO; and Edward L. Smith, Detention Deputy, PCSO. Respondent offered eight (8) exhibits which were entered into evidence. The parties offered and had admitted into evidence one joint exhibit.

The transcript of the hearing was filed on May 15, 1996. Petitioner subsequently requested and was granted an extension of time in which to file a proposed recommended order. Both parties filed proposed finding of fact and conclusions of law. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 96-0019.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Brenda Barnett, was employed as a detention deputy by the Pinellas County Sheriff's Office, and deemed to be a classified employee. Respondent was initially hired in 1991, and worked as a steward in the jail kitchen facilities before becoming a detention deputy.

   
   

2. Respondent is a state-certified sworn correctional officer and, in her capacity as a deputy detention officer, is charged with exercising direction, dominion, and control over incarcerated inmates.

   
   

3. Prior to her employment as a detention deputy and as a condition thereto, Respondent received extensive training. Such training includes nearly

   500 hours of academy training sanctioned by the Criminal Justice Standards and Training Commission. Also, once employed, the Pinellas County Sheriff's Office provides detention deputies with in-service training and forty hours of formal training annually. Respondent received such additional training through in- service while employed as a detention deputy.

   
   

4. In March 1995, Respondent Barnett began a casual relationship with an inmate, Nelson Alas. Inmate Alas was incarcerated at the same facility where Respondent Barnett worked. At first, Respondent exchanged pleasantries such as "hello" or "good bye" with Inmate Alas. Inmate Alas would compliment Respondent. Within days, Inmate Alas attempted to pass a note to Respondent Barnett. Initially, Respondent refused to accept the notes. However, within ten days, Respondent accepted a note from Inmate Alas and soon began writing letters to Inmate Alas.

   
   

5. Between the period, March 1995 and April 1995, Respondent wrote at least twenty-one letters to Inmate Alas. During this time Inmate Alas also wrote letters to Respondent. At one point Inmate Alas gave Respondent a photograph of himself. The letters written by Respondent to Inmate Alas were romantic in nature, and many of them spoke of her feelings for and attraction to Inmate Alas. Respondent has never denied and has, in fact, admitted writing these letters to Inmate Alas. Respondent further admitted that on one occasion during her involvement with Inmate Alas, she kissed him.

6. Respondent's actions came to the attention of Detention Deputy David Howsare when an inmate told him that there was communication between Respondent and Inmate Alas, including the exchange of notes and allegations of physical contact. Detention Deputy Howsare reported this through his chain of command, and a search of Inmate Alas' cell was conducted. The search uncovered letters that had been written to Inmate Alas.

   
   

7. At about the same time the complaint was made to Detention Deputy Howsare, a complaint regarding Respondent was called in to the PCSO Inspection Bureau. The complaint was made by Cynthia Hadley, who identified herself as the girlfriend of Inmate Alas. Ms. Hadley indicated that her boyfriend, Inmate Alas, was having an affair with a detention deputy and had written several letters to the detention deputy.

   
   

8. The matter was referred to the Administrative Investigation Unit and Sgt. Daniel Buckingham and Sgt. Robert Kidd were assigned to investigate the complaint. During the investigation, Sgt. Buckingham sought to ascertain the identity of the person who wrote the letters that were found in Inmate Alas' cell. In this regard, Sgt. Buckingham had the letters sent out for processing for latent fingerprints. After this analysis revealed only the fingerprints of Inmate Alas, Respondent was required to provide a handwriting exemplar. The handwriting exemplar was sent to the Florida Department of Law Enforcement for analysis. The result confirmed that Respondent was the author of at least fifteen of the letters.

   
   

9. Also, as part of the investigation, interviews were conducted with Inmate Alas, Ms. Hadley, and Respondent. The interview with Inmate Alas' was unsuccessful in that he was evasive, refused to answer many questions, and was generally uncooperative. During her interview with Sgt. Kidd and Sgt. Buckingham, Respondent admitted improper contact with Inmate Alas, including writing letters to him and receiving a photograph of him.

   
   

10. Upon completion of the investigation, the investigatory file was given to Respondent's Chain-of-Command Board for review. Based on its review, the Chain-of-Command Board unanimously found that Respondent had violated rules and regulations of the PCSO relating to loyalty, association with prisoners, and knowledge of and obedience to rules and regulations.

    
    

11. As a detention deputy, Respondent's actions of fraternizing with an inmate compromised her position and may have lead to the erosion of security. Also, such undue familiarity has the potential for jeopardizing the security of the institution and the safety of the public as well as that of Respondent's own family.

    
    

12. Under the PCSO General Orders B-15 and C-1, as amended in February 1994, the disciplinary point calculation for Respondent Barnett was seventy-five

    1. points. The range of discipline for seventy-five (75) points is from a 10- day suspension to termination. The Chain-of-Command voted unanimously to recommend termination. Sheriff Rice concurred with the recommendation and terminated Respondent on June 20, 1995.

       
       

13. Throughout the investigation and hearing, Respondent has admitted that she engaged in the conduct which is the subject of the termination notice. Respondent explained that her involvement with Inmate Alas occurred during a time that she was experiencing marital problems. In Respondent's opinion, these problems were exacerbated when she found a diary belonging to her husband in which he stated that he no longer loved her. According to Respondent, due to

    these problems, she was extremely vulnerable at that time. However, Respondent indicated that after the incidents which are the subject of this proceeding, she and her husband went to counseling and, presently, their marriage is strong.

    
    

14. Prior to this case, Respondent has not been investigated or disciplined by the PCSO.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to Sections 120.57(1) and 120.68(8), Florida Statutes, and Chapter 89-404, Section 8, Laws of Florida

    , as amended by Chapter 90-395, Section 8, Laws of Florida.

    
    

16. Petitioner, the Sheriff of Pinellas County, is the chief correctional officer of the county correctional system. In that capacity, Petitioner is charged with enforcement of state laws and administrative rules concerning the operation and maintenance of jails in Pinellas County. Section 951.061(2), Florida Statutes, and Pinellas County Ordinance 87-49.

    
    

17. Respondent Barnett, as a classified employee and detention deputy of the PCSO, is charged with the responsibility of complying with all applicable state laws and rules, and rules, regulations, and operating procedures of the PCSO.

    
    

18. Chapter 89-404, Section 6, Laws of Florida, as amended by Chapter 90- 395, Section 6, Laws of Florida, authorizes the Sheriff to suspend, dismiss, or demote classified employees for offenses enumerated therein. That section provides in pertinent part the following:

    
    

    1. [Cause for suspension, dismissal, or demotion shall include], but not be limited to: negligence, inefficiency, or inadequate job performance; inability to perform the assigned

       duties; incompetence, dishonesty, insubordination, [violation of the provisions of law or rules, regulations, and operating procedures of the Office of the Sheriff, conduct unbecoming to

       a public servant], misconduct, or proof and/or admission of use of illegal drugs. . . .

       
       

    2. The listing of causes for suspension, demotion, or dismissal in this section is not intended to be exclusive. The Sheriff may, by departmental rule, add to this list of causes for suspension, dismissal or demotion. [Emphasis supplied.]

    
    

19. Chapter 89-404, Section 2, Laws of Florida, authorizes the Sheriff to adopt rules and regulations as are necessary to implement and administer this section. Pursuant to this authority, Petitioner has adopted policies which establish a standard of conduct which must be followed by all employees of the PCSO.

    
    

20. In the termination notice, Respondent was charged with conduct unbecoming a public employee and with violating rules, regulations, and operating procedures of the PCSO. Specifically, Respondent is charged with violating the following PCSO rules:

    1. Rule C-1, V, A (002)(Level 5 violation): Loyalty - Members shall maintain their loyalty to the Sheriff's Office and it's [sic] members

       as is consistent with law and professional ethics as established in Policy Statement A-2.

    2. Rule C-1, V, A (011)(Level 5 violation): Associating With Prisoners- Members shall not fraternize with or perform favors for any person in custody except with the authorization of the sheriff or his designee.

    3. Rule C-1, V, C (063)(Level 5 violation): Knowledge of, and Obedience To, Laws and Rules and Regulations- Every deputy is required to establish and maintain a working knowledge of all laws and ordinances in the county. All members shall observe and obey all General Orders, Standard Operating Procedures and Rules and Regulations issued by the Sheriff's Office. In the event of improper action or breach of discipline, it will be assumed the member was

       familiar with the applicable law, policy or procedure.

       
       

21. In an administrative proceeding, the burden is on the party asserting the affirmative of an issue. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Therefore, in order to prevail in this proceeding, Petitioner is required to prove the charges against the Respondent by a preponderance of the evidence.

    
    

22. The allegations in the termination notice are uncontroverted. In the instant case, Respondent admitted that she became romantically involved with an inmate at the facility where she worked as a detention deputy. Likewise, the evidence demonstrated and Respondent admitted that she engaged in inappropriate verbal, written, and physical contact with Inmate Alas. Respondent also admitted that at the time she committed these acts, she knew that her behavior was wrong and violated the rules and regulations of the PCSO.

    
    

23. Based on the evidence adduced at hearing and Respondent's own admissions, it is undisputed that Respondent committed the acts alleged in the termination notice. As charged, these acts constitute violations of Rule C- 1,V,A (002), relating to loyalty; Rule C-1,V,A (011), relating to association with prisoners; and Rule C-1,V,C, (063), relating to knowledge of and obedience to applicable laws, rules, and regulations.

    
    

24. Rule C-1,V,A, (002) requires classified employees to maintain their loyalty to the PCSO and its members as is consistent with law and professional ethics. Pursuant to this rule, employees are to faithfully carry out their responsibilities and steadfastly adhere to rules and regulations of the PCSO. In the instant case, Respondent admitted that she was attracted to Inmate Alas, that she eventually responded to his advances, and that she ultimately began a personal relationship with Inmate Alas during his incarceration. Respondent's willingness to put her personal feelings toward Inmate Alas above her professional responsibilities casts serious doubt as to her trustworthiness to effectively perform as a detention deputy. By yielding to the advances of Inmate Alas and her own feelings, Respondent not only disregarded her lawful

    duties, but jeopardized the safety of her colleagues, family, and the public. As a result of Respondent's actions, she is guilty of violating Rule C-1,V,A (002).

    
    

25. Rule C-1,V,A (011) prohibits detention deputies and other members of Classified Service from fraternizing with or performing favors for any person in custody except with the authorization of the Sheriff or his designee.

    Respondent admitted that she engaged in inappropriate verbal, written, and physical contact with Inmate Alas. Such conduct was not authorized and is precisely the type of association with prisoners which is expressly forbidden. Given Respondent's admissions and the evidence adduced at hearing, Petitioner has proved that Respondent violated Rule C-1,V, A (001).

    
    

26. Finally, Rule C-1, V, C, (063), requires that all deputies have a "working knowledge" of applicable laws and ordinances. Further, the rule requires that detention deputies observe and obey all orders, procedures, rules and regulations of the PCSO. In this case, Respondent admitted that she knew that the rules of the PCSO prohibited detention deputies from associating with persons in custody. Nonetheless, Respondent admitted that she established and maintained a personal relationship with Inmate Alas. This relationship began and was maintained while Inmate Alas was incarcerated at the facility where Respondent worked as a detention deputy. Respondent's actions constitute a violation of Rule C-1,V,C (063). Thus Petitioner has met his burden and has demonstrated that Respondent failed to obey rules of the PCSO.

    
    

27. The PCSO Civil Service Act, Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Section 6, Laws of Florida, authorizes termination for employees deemed to have engaged in conduct unbecoming a public servant and those who violate laws, rules, regulations, or operating procedures of the PCSO. For the reasons stated above, it is clear that Respondent violated rules of the Sheriff's Office. Moreover, Respondent's actions with regard to Inmate Alas, as established in the record, constitute conduct unbecoming a public servant.

    
    

28. The rules and regulations of the PCSO are divided into five categories ranging from Level 1 to Level 5, "with violations of Level Five comprising the most serious discipline." PCSO Policy C-1, III. Rules C-1, V, A, (002) and

    (011) violated by Respondent are classified as Level 5 offenses and should result in the most serious discipline.

    
    

29. The disciplinary guidelines established by the Sheriff's Office set forth a range of penalties for violations of PCSO rules. Based on the point total for the offenses committed by Respondent, termination is an appropriate penalty. Furthermore, termination of Respondent in this case is consistent with prior disciplinary actions taken by the Sheriff's Office in similar situations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Sheriff's Civil Service Board enter a Final Order finding Respondent, Brenda Barnett, guilty of conduct unbecoming a public servant; violating PCSO Rules C-1, V, A, (002) and (011) and Rule C-1, V, C, (063); and upholding Respondent's termination from employment as a deputy detention officer with the Pinellas County Sheriff's Office.

DONE and ENTERED this 31st day of July, 1996, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0019

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1-4. Accepted.

5-22. Accepted and incorporated to the extent not subordinate and unnecessary.

Respondent's Proposed Findings of Fact.

1-2. Accepted.

3-6. Accepted and incorporated.

7-8. Accepted but subordinate to result reached.

9-11. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted and incorporated.

2. Accepted but subordinate to result reached.

14-20. Rejected as conclusions of law and/or legal arguments.

COPIES FURNISHED:

Lawrence A. Jacobs, Esquire Feathersound Place

2727 Ulmerton Road, Suite 2

Clearwater, Florida 34622

James M. Craig, Esquire

ALLEY AND ALLEY/FORD AND HARRISON

205 Brush Street Post Office Box 1427 Tampa, Florida 33601

B. Norris Rickey, Esquire

Office of Pinellas County Attorney

315 Court Street Clearwater, Florida 34616

Copies furnished continued:

Jean H. Kwall, Esquire

Pinellas County Sheriff's Office Post Office Drawer 2500

Largo, Florida 34649-2500

William Repper, Chairperson Pinellas County Sheriff's

Civil Service Board Post Office Box 539

Clearwater, Florida 34617

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-000019

Orders for Case No: 96-000019