STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLARD D. RICE, )

)

Petitioner, )

)

vs. ) Case No. 97-3402

)

EVERETT S. RICE, PINELLAS )

COUNTY SHERIFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on October 14, 1997, in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William E. LauBach

Executive Director Pinellas County Police

Benevolent Association 3737 16th Street North

St. Petersburg, Florida 33704

For Respondent: Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler & Evans Post Office Box 12186

Tallahassee, Florida 32317-2186 STATEMENT OF THE ISSUE

Whether the conduct of Petitioner violated the Pinellas County Sheriff’s Office Civil Service Act and the rules and

regulations of Pinellas County Sheriff’s Office and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By inter-office memorandum dated July 21, 1997, Respondent Everett S. Rice, Pinellas County Sheriff, notified Petitioner, Willard D. Rice, that the Chain-of-Command Discipline Board had determined that he had 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 rules of the Pinellas County Sheriff’s Office. Specifically, Respondent was charged with engaging in conduct unbecoming a public servant and violating Pinellas County Sheriff’s Office rules relating to custody of arrestees and prisoners, and to insubordination.

Based on these charges, Sheriff Rice notified Petitioner Rice that he would be suspended without pay for ten days.

Petitioner challenged the charges and the penalty imposed, and timely requested a formal hearing. By letter dated July 25, 1997, the matter was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the final hearing.

At the hearing, Petitioner presented the testimony of five witnesses: Detention Deputies Lloyd D. Spain, Larry Potts, and Nelson Whitesell; Detention Corporal Marjeta Salliotte; and the deposition testimony of Detention Deputy Denise Borland.

Petitioner had two exhibits admitted into evidence. Respondent presented the testimony of five witnesses: Detention Deputy

Willard Rice, including his deposition testimony; Detention Sergeant James B. Moore; Major Kenneth L. Remming; and the deposition testimony of Lieutenant Krista Rauch, and Detention Deputy Erick DePalma. Respondent offered and had twenty-two

(22) exhibits admitted into evidence. The record was left open for the filing of two late-filed exhibits, Petitioner’s Exhibit

2 and Respondent’s Exhibit 28. Petitioner and Respondent filed their respective exhibits.

A transcript of the proceeding was filed on October 27, 1997. By agreement of the parties, at the conclusion of the hearing, the time period for filing proposed recommended orders was more than ten days after the transcript was filed, thereby waiving the time constraint imposed by Rule 60Q-2.031(2), Florida Administrative Code. Petitioner subsequently requested and the parties were granted a further extension in which to file proposed recommended orders. The parties timely filed their proposed recommended orders under the extended time frame.

FINDINGS OF FACT

1. Respondent is a constitutional officer for the State of Florida, responsible for providing law enforcement and correctional services within Pinellas County, Florida. As a result, Respondent maintains and operates a correctional facility, commonly referred to as the Pinellas County Detention Center, or Pinellas County Jail.

2. Petitioner is a detention deputy employed by Respondent at the Pinellas County Jail (Jail) and has been so employed for approximately fifteen years. Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioner is responsible for the care, custody, and control of inmates incarcerated at the Jail.

3. On May 10, 1997, while employed as a detention deputy by the Respondent, Petitioner was assigned to the B-Wing of the South Division working on the third shift. While on break that day, Petitioner went to the booking area of the Jail to meet his wife for lunch. Petitioner's wife, an employee of the Pinellas County Sheriff's Office, was working that same shift in the booking area. When Petitioner arrived in the booking area, in addition to his wife, also present were Detention Deputies Larry Potts, Lloyd Spain, Denise Borland and Detention Lieutenant Krista Rauch. Spain and Borland were processing an individual being booked into the Jail while Potts was assisting Rice’s wife. Lieutenant Rauch was located at the booking desk in a glassed area.

4. On May 10, 1997, at the time the events in paragraph 3 were transpiring, Mathew Robinson was being booked into the Jail. After a portion of the booking process had been completed, Robinson was seated on a bench in the booking area awaiting a routine medical screening. During this process,

   Robinson became disruptive and began screaming and yelling. As a result thereof, Spain attempted to calm Robinson and de- escalate his disruptive behavior.

5. When Robinson remained uncooperative, Spain, with the assistance of Potts, took physical control of Robinson and escorted him out of the booking area through a door commonly referred to as the “blue door.” Robinson was not shackled or handcuffed. Petitioner remained in the booking area.

6. After Spain and Potts left the booking area with Robinson, Petitioner detected the shuffling of feet in the hallway area on the other side of the blue door and he proceeded through the door to investigate. Petitioner then observed Potts and Spain with Robinson who was in a half-squatted position with his knees bent. Following behind Potts, Spain, Robinson and Petitioner, was Detention Deputy Borland who had subsequently come through the blue door into the corridor in order to photograph the inmate.

7. As Spain and Potts continued to escort Robinson down the hall, Petitioner followed behind them at a distance until they arrived at the vestibule area at the entrance to the C- Wing. At the entrance to C-Wing, there is a control booth that protrudes into the corridor area. During this entire escort process, Robinson remained unrestricted, other than his being held by Spain and Potts. At some point prior to the incident described in paragraph 10 below, Lieutenant Rauch left the booking area and entered the hallway through the blue door.

8. When Spain and Potts arrived at the C-Wing entrance, the gate was already open. Robinson had escalated his level of resistance by screaming, yelling, fighting, and opposing efforts to walk him through the gate. Prior to the entry of Robinson and the detention deputies into the vestibule area of C-Wing, Robinson began trying to pull away from Spain and Potts and his

   feet were off the floor in an attempt to break the officers’ efforts to move him forward. However, Robinson did not throw punches, strike blows, or kick.

9. During the escalation of resistance by Robinson, Spain did not lose physical control of Robinson, although he was pulled off balance. Robinson did break away from the hold being exercised by Potts for a few seconds. Neither Potts nor Spain fell to the ground. Neither Spain nor Potts requested the assistance of Petitioner nor were they aware of Petitioner’s presence.

10. As the struggle continued, Petitioner intervened by kicking Robinson in the buttocks. Spain and Potts then took Robinson to the ground. Petitioner assisted in restraining Robinson and escorting him into C-1 Wing.

11. Neither Petitioner nor other deputies have been trained to kick an inmate in the buttocks as a control technique. Kicking is generally used as a technique to impair or disable an inmate. At the time Petitioner kicked Robinson, he was not attempting to impair or disable Robinson. Deputies are taught to kick as a defensive maneuver when an inmate is approaching an officer. The kicking technique generally involves striking the inmate on the side of the leg in the calf area in order to effectuate a take down or redirect the inmate to the ground. The training provided to correctional officers

    in the use of kicking technique limits its use to circumstances requiring a counter- move to impede a subject’s movement toward an officer. At the time that Petitioner kicked Robinson, Robinson was not coming toward Petitioner.

12. The kicking technique utilized by Petitioner lifting his leg, bringing it to hip level, thrusting the foot forward and kicking the inmate in the buttocks, is not an appropriate defensive tactic. This is not taught as a defensive tactic because it involves striking what is commonly called a “red zone.” Red zone areas include the head, neck and spine, and groin areas. A blow to red zone areas is appropriate only in a deadly force situation because such a blow may cause serious injury or death to the person struck. It is uncontested that the struggle Robinson engaged in with Spain and Potts did not create a situation where the use of deadly force would be appropriate.

13. On May 10, 1997, shortly after the incident in question, Borland prepared an incident report in which she made no reference to Petitioner’s kicking Robinson. Borland was questioned about the incident by Corporal Powell of the Internal Affairs Division on May 28, 1997. During this inquiry, Borland made no reference to the kicking incident.

14. Thereafter, Borland spoke to her supervisor, Lieutenant Rauch, and expressed her discomfort with preparing a

    report that would implicate Petitioner in misconduct. Lieutenant Rauch instructed Borland to prepare a report reflecting what Borland had observed. Borland complied with Lieutenant Rauch’s directive and, on May 30, 1997, prepared a memorandum. In the memorandum, directed to Corporal Powell, Borland indicated that on May 10, 1997, she had observed Petitioner kick Robinson.

15. In June 1997, Borland told Deputy Corporal Marjeta Salliiotte that she did not want to write the May 30, 1997, memorandum. However, Borland stated that Lieutenant Rauch told

    her that both Borland and Rauch could get in trouble if Borland failed to write the memorandum.

16. The Pinellas County Sheriff’s Office conducted an internal investigation regarding the incident of May 10, 1997. As part of that investigation, on June 23, 1997, the Chain-of- Command Board took a sworn statement from Petitioner. After giving his account of the events, Petitioner was asked questions regarding the incident by Corporal Powell and Sergeant R. Alphonso of the Pinellas County Sheriff’s Office Inspection Bureau. Prior to the questioning, Corporal Powell instructed Petitioner “to answer questions directed to you during this interview truthfully and to the best of your knowledge.”

17. While being questioned regarding the events of May 10, 1997, Petitioner admitted that he kicked Robinson in the buttocks and that this was observed by Lieutenant Rauch. However, from his point of view, the struggle that ensued between Robinson, Potts and Spain immediately prior to the kick could not have been observed by Lieutenant Rauch. From Lieutenant Raunch’s vantage point, as seen by Petitioner, her view of that struggle had to have been obstructed by the control room. Petitioner’s perception of where Lieutenant Rauch was at the time of the struggle is not inconsistent with that of other detention deputies in the immediate vicinity at that time.

18. In response to questions during the proceeding of

    June 23, 1997, Petitioner was adamant in his denial that Lieutenant Rauch did not observe the struggle that Spain and Potts had with Inmate Robinson immediately before Robinson was kicked. Throughout his interrogation, Petitioner did not waver from this position, notwithstanding statements from Sergeant Alfonso that Lieutenant Rauch’s written statement gave “the inference that she saw that struggle.”

19. Although Petitioner had responded when asked about the discrepancy in his statement and that of Lieutenant Rauch, Sergeant Alfonso continued to question Petitioner concerning whether the lieutenant observed the struggle. Among the questions asked by Sergeant Alfonso were: “Now, are you saying that [Lieutenant Rauch’s] being untruthful, that she’s lying about this?”; “And so what you’re telling us today is that Lieutenant Rauch is lying about seeing the incident?”; and “Your opinion is that Lieutenant Rauch is a liar?” In response to these questions, Petitioner answered in the affirmative.

20. During the course of giving his sworn statement, Petitioner was asked whether he believed that Deputy Borland “lied in her statement against him.” Petitioner was also asked whether it was his “belief that Lieutenant Rauch put Deputy Borland up to that lie.” Petitioner answered both of these questions in the affirmative. At the time Petitioner responded to these questions, he believed that he was answering

    truthfully.

    
    

21. There were two reasons that Petitioner believed that Borland’s second account of the incident was inaccurate and that Lieutenant Rauch told Borland what to put in the memorandum. First, Petitioner was aware that Borland’s May 10, 1997, incident report made no reference to the kicking incident and that Borland first mentioned the kicking incident in the memorandum dated May 30, 1997. Second, Petitioner based this belief on comments made to him by his wife. According to Petitioner’s wife, Borland had told another officer, Deputy Corporal Marjeta Salliiotte, that Lieutenant Rauch directed Borland to write the memorandum. Petitioner mistakenly concluded or interpreted this comment to mean that Lieutenant Rauch told Borland specifically what to include in the memorandum.

22. After completing its investigation, the Administrative Inquiry Division (AID) presented its entire investigative file to the Chain-of-Command Board without conclusion or recommendation. The Chain-of-Command Board met and, after reviewing the materials provided by AID and giving Petitioner the opportunity to respond further, the complaint was sustained. Specifically, the violations determined by the Board to have occurred were:

    1. Violation of Pinellas County

       Sheriff’s Office Civil Service Act, Laws of Florida 89-404, as amended by Laws of Florida 90-395, Section 6, subsection 4:

       
       

       1. conduct unbecoming a public servant;

          
          

       2. violations of the provisions of law or the rules and regulations and operating procedures of the Office of the Sheriff;

       
       

    2. Violation of rule and regulation of the Pinellas County Sheriff’s Office, C- 1, V, A, 021, relating to the custody arrestees/prisoners, a Level Five violation;

       
       

    3. Violation of rule and regulation of the Pinellas County Sheriff’s Office, C- 1, V, A, 024, relating to insubordination, use of profanity or insulting language towards a superior officer, a Level Five violation.

23. Under the Pinellas County Sheriff’s Office Guidelines, a sustained finding of two Level Five violations is the basis for assigning 60 disciplinary points. As a result, Petitioner was assessed 60 disciplinary points. The Pinellas County Sheriff’s Office General Order B-15 identifies a disciplinary range for 60 points to be from a minimum penalty of a seven-day suspension to a maximum penalty of termination. In the instant case, Petitioner was assessed a ten-day suspension.

24. The conduct engaged in by Petitioner in kicking inmate Robinson did not constitute a good correctional practice, and is not consistent with the training or conduct expected of correctional officers. The role of a correctional officer in an altercation is to engage in defensive maneuvers and to gain control of the inmate creating the disturbance. Although correctional officers are allowed to defend themselves, kicking an inmate in the buttocks serves no correctional purpose, does not constitute the proper use of defensive tactics and is not designed to maintain control of an inmate or a situation. Kicking an arrestee or inmate in the buttocks area is not appropriate absent a situation where great bodily harm is being threatened by the inmate.

25. The conduct engaged in by Petitioner in responding to questions during the course of giving a sworn statement do not

    constitute insubordination. Respondent was required to answer all questions truthfully, that is the truth as he knew or perceived it to be. In the instant case, Petitioner's comments were not made voluntarily nor were they directed to Lieutenant Rauch. Instead, Petitioner's statements were made in response to questions from a member of the Pinellas County Sheriff’s Office Inspection Bureau who was investigating the incident.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this action, pursuant to Section’s 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.

27. Petitioner Rice as a sworn detention deputy with the Pinellas County Sheriff’s Office is charged with the responsibility of complying with all applicable State laws and regulations and operating procedures of that office.

28. Chapter 89-404, 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 shall 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 the rules, regulations, and operating procedures of the Office of the Sheriff, conduct unbecoming to a public servant, misconduct, or proof and/or admission 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, by department rule, may add to this list of causes for suspension, dismissal or demotion.

    
    

29. 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, Respondent has adopted rules, regulations, and policies establishing the standard of conduct which must be followed by all employees of the Pinellas County Sheriff’s Office.

30. Among the rules and regulations adopted by Respondent pursuant to this authority are the following found under General Order B-15:

    1. Rule C-1, V, A, 021 (Level Five Violation): custody of arrestees/prisoners - arrestees/prisoners shall be kept secured and treated humanely and shall not be subjected to physical abuse. The use of physical force shall be restricted to circumstances specified by law when necessary to accomplish a police task.

    2. Rule C-1, V, A, 024 (Level Five Violation) use of profane or insulting language toward a superior officer.

       
       

31. Count I alleges that Petitioner violated the Pinellas County Sheriff Office Civil Service Act by engaging in conduct unbecoming a public servant and violating the provisions of law or the rules, regulations, and operating procedures of the Office of the Sheriff. The evidence shows that Petitioner engaged in conduct unbecoming a public servant by using improper and unnecessary force in kicking an inmate.

32. Count II alleges that Petitioner violated Pinellas County Sheriff’s Office Rule C-1, V, A, 021, by engaging in the use of physical force that was unnecessary. The evidence supports this violation. Even if it is assumed that Petitioner’s assistance was required in controlling Inmate Robinson, the evidence establishes that Petitioner’s action, kicking the inmate in the buttocks, was unnecessary and inappropriate under the circumstances. The weight of the evidence established that the technique used by Petitioner is not part of the training or guidelines provided to correctional officers and is not included in the guidelines provided to correctional officers.

33. Count III alleges that Petitioner violated Pinellas County Sheriff’s Office Rule C-1, V, A, 024, relating to insubordination. Specifically, it is alleged that Petitioner accused a superior officer, Lieutenant Krista Rauch, of lying during the course of the statement she gave to investigators conducting the investigation. Also, it is alleged that Petitioner accused the superior officer of persuading another detention deputy to be untruthful in her statements and reports given during the investigation.

34. The evidence failed to establish the allegations

    contained in Count III. In its plain ordinary use, the term insubordination means disobedient to authority. In this instant case, the alleged conduct, statements made by Petitioner, does not constitute insubordination or any other act prohibited by this rule. Petitioner’s statements were made during the course of a proceeding in which he was under oath and was required to tell the truth to the best of his knowledge. Therefore, Petitioner was obligated to answer questions based on his personal perception of the events in question. Clearly, Petitioner’s view of those events differed from that of Lieutenant Rauch. However, by responding honestly to direct questions which focused on a discrepancy, Petitioner is not guilty of insubordination.

35. The burden is on the party asserting the affirmative of an issue in an administrative proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d (Fla. 1st DCA 1977). Therefore, in order to prevail in this proceeding, Respondent is required to prove the charges against the Petitioner by a preponderance of the evidence. Respondent has met his burden in this case with regard to Counts I and II, but has failed to meet his burden as to Count III.

36. The rules and regulations of the Pinellas County Sheriff’s Office are divided into five categories ranging from Level One to Level Five, with violations of Level Five compromising the most serious discipline. Pinellas County Sheriff’s Office Rule C-1, III. A substantiated charge of a violation of Pinellas County Sheriff's Rule C-1, V, A, 21 is classified as a Level Five infraction and is assigned fifty (50) points.

37. Given the prescribed point total of fifty (50), the discipline may range from a five-day suspension to termination. In this case, an eight-day suspension is an appropriate penalty and is consistent with the discipline allowable for such an offense.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Civil Service Board of the Pinellas County Sheriff’s Office enter a Final Order finding Petitioner guilty of the conduct alleged in Counts I and II of the charging document and suspending Petitioner, without pay, for eight (8) days from his employment as a detention deputy with the Pinellas County Sheriff’s Office.

DONE AND ENTERED this 9th day of March, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIED

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUMCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1998.

COPIES FURNISHED:

William M. LauBach Executive Director Pinellas County Police

Benevolent Association, Inc.

3737 16th Street, North

St. Petersburg, Florida 33704

B. Norris Rickey

Senior Assistant County Attorney Pinellas County Attorney's Office

315 Court Street Clearwater, Florida 34616

Keith C. Tischler, Esquire Powers, Quaschnick, Tischler

and Evans

Post Office Box 12186 Tallahassee, Florida 32317-2186

Jean H. Kwall, Esquire

Pinellas County Sheriff's Office Post Office Drawer 2500

Largo, Florida 33779-2500

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 within

15 days from the date of 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: 97-003402

Orders for Case No: 97-003402