STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY J. ROBINSON and )

CHARLES OSZ, )

)

Petitioners, )

)

vs. ) Case Nos. 98-1889

) 98-1890

EVERETT S. RICE, PINELLAS )

COUNTY SHERIFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on October 6, 1998, in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner Robinson:

William E. LauBach, Esquire Executive Director

Pinellas County Police Benevolent Association

3737 16th Street, North

St. Petersburg, Florida 33704

For Petitioner Osz:

No Appearance

For Respondent: Keith C. Tischler, Esquire

Power, Quaschnick, Tischler and Evans Post Office Box 12186

Tallahassee, Florida 32317-2186 STATEMENT OF THE ISSUE

Whether Petitioners committed the offenses alleged and, if

so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By interoffice memoranda dated April 2, 1998, Petitioners, Jerry J. Robinson and Charles Osz, detention deputies, were notified by Respondent, Everett S. Rice, Pinellas County Sheriff, that the Chain of Command Discipline Board determined that they had violated the Pinellas County Sheriff Office Civil Service Act and rules and regulations of the Pinellas County Sheriff's Office (PCSO). Petitioner Robinson was charged with (1) engaging in conduct unbecoming a public servant and (2) violating PCSO rules and regulations relating to truthfulness and to reporting violations of laws, ordinances, rules, or orders. Petitioner Osz was charged with (1) engaging in conduct unbecoming a public servant and (2) violating PCSO rules and regulations relating to truthfulness, custody of arrestees/prisoners, and standard of conduct. As a result of the alleged conduct, Petitioners' employment with the PCSO was terminated.

Petitioners challenged the charges and the disciplinary action taken against them and timely requested a formal hearing. On or about April 27, 1998, 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 Robinson testified on his own behalf and had one exhibit received into evidence. Respondent

presented the testimony of five witnesses: Joseph Nichols; Officer John Fitzgerald; Sergeant Robert Fletcher; Detention Deputy Larry Potts; and Detention Deputy Monte Esry. Respondent offered and had twenty-six exhibits received into evidence.

Petitioner Robinson and Respondent had one joint exhibit received into evidence. Petitioner Osz failed to appear at the hearing and no evidence or testimony was presented on his behalf.

A transcript of the proceeding was filed on October 15, 1998. 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 28-106.216, Florida Administrative Code. The parties timely filed their proposed recommended orders under the extended time frame.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Petitioners Jerry J. Robinson and Charles Osz, were detention deputies employed by the Respondent, Everett S. Rice, Pinellas County Sheriff (Respondent), and assigned to the Pinellas County Jail (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioners were responsible for the care, custody, and control of persons held at the Jail.

2. On January 30, 1998, Officer John Fitzgerald of the Largo Police Department took Duston Llano into custody and

   transported him to the Jail. Joseph Nichols, an Explorer Scout with the Largo Police Department, accompanied Officer Fitzgerald to the Jail.

3. Mr. Llano was not under arrest since he had committed no crime but was taken into custody pursuant to the Marchman Act based upon his intoxicated condition. When he was taken into custody, Mr. Llano did not resist or threaten physical harm to the officers but did threaten to sue the officers.

4. On January 30, 1998, Petitioners Robinson and Osz were assigned to the booking area of the Jail. Upon Mr. Llano's arriving at the Jail, Petitioners Robinson and Osz took possession of him in the pre-booking area. Shortly thereafter, Petitioners transported Mr. Llano to the post-booking section of the Jail and placed him in Cell 4. Mr. Llano was barely able to walk and was assisted by Petitioners Robinson and Osz to the post-booking area.

5. Once in Cell 4, Petitioners began a pat-down search of Mr. Llano. Petitioner Robinson was to the left of Mr. Llano and Petitioner Osz was to Mr. Llano's right. During the search, a substance Petitioners believed might be crack cocaine was found on the person of Mr. Llano.

6. After the suspicious substance was found on Mr. Llano, Detention Deputy Monte Esry requested that Detention Deputy Larry Potts summon Officer Fitzgerald and Mr. Nichols and ask them to remain at the Jail to possibly process the substance and effect

   an arrest of Mr. Llano. Detention Deputy Potts complied with Detention Deputy Esry's request and then accompanied Officer Fitzgerald and Mr. Nichols down the hall from the pre-booking area to Cell 4 of the post-booking area where Mr. Llano was being held.

7. The substance found on Mr. Llano's person and believed to be contraband was found by Petitioner Osz who gave the substance to Petitioner Robinson. Petitioner Robinson then handed the substance to Detention Deputy Esry who handed it to Detention Deputy Potts who, then, handed it to Officer Fitzgerald for testing.

8. Having found what they believed to be contraband, Petitioners Osz and Robinson began a strip search of Mr. Llano.

9. When they arrived at Cell 4, Officer Fitzgerald stood near the doorway to the cell and Mr. Nichols remained in the hallway outside the cell. From Officer Fitzgerald's and

   Mr. Nichols' vantage point, it was possible for them to see into Cell 4. Both Officer Fitzgerald and Mr. Nichols observed

   Mr. Llano sitting on the bunk in the cell with Petitioner Robinson on his left and Petitioner Osz on his right. Mr. Llano was slumped over and again made reference to suing everyone.

   However, Mr. Llano took no action to resist or otherwise justify the use of force.

10. In an apparent response to Mr. Llano's threat to sue, Petitioner Osz grabbed Mr. Llano by his hair, straightened him up

    and slapped him on the face or head at least twice. While Petitioner Osz was slapping Mr. Llano, he said something to the effect of "how about another thousand" or "there is another thousand." From his vantage point in the hall, not more than 15 feet away, Mr. Nichols saw Petitioner Osz slap Mr. Llano and heard the comments by Petitioner Osz. Officer Fitzgerald, who was at the doorway of Cell 4, approximately nine feet, also saw the slapping incident and heard the comments made by Petitioner Osz.

    
    

11. During the course of the slapping incident, Detention Deputy Potts was also in Cell 4. Nonetheless, he testified that he did not see Petitioner Osz slap Mr. Llano.

12. When Petitioner Osz slapped Mr. Llano, Petitioner Robinson was in Cell 4 and within five or six feet of Petitioner Osz and Mr. Llano. However, at the time of the incident, Petitioner Robinson was preoccupied with depositing items obtained from Mr. Llano's person into a property bag that was on a steel table in the cell and did not see Petitioner Osz slap

    Mr. Llano. Also, because the Jail was very busy and loud on this evening, Petitioner Robinson did not hear Petitioner Osz slap

    Mr. Llano.

    
    

13. Because Petitioner Robinson did not observe the incident, he did not respond to or report Petitioner Osz' actions toward Mr. Llano.

14. Neither Officer Fitzgerald nor Mr. Nichols observed Petitioner Robinson during the slapping incident and could not testify as to where he was looking when the incident occurred.

15. After the slapping incident, Officer Fitzgerald and Mr. Nichols then left the area of Cell 4 in order to conduct a test of the substance found in Mr. Llano's pants pocket. As a result of the test performed by Officer Fitzgerald, it was determined that the substance was not illegal. After conducting

    the presumptive test, Officer Fitzgerald and Mr. Nichols left the Jail.

16. Officer Fitzgerald and Mr. Nichols subsequently reported the slapping incident to their supervisors and prepared reports memorializing the events they observed. A representative of the City of Largo Police Department then reported the incident to the Respondent, who initiated an investigation by the Pinellas County Sheriff's Office, Inspections Bureau, Administrative Inquiry Division.

17. As a part of the investigation regarding the conduct in question, sworn statements were taken from Officer Fitzgerald, Mr. Nichols, Detention Deputy Potts, Detention Deputy Esry and Petitioners Osz and Robinson. Attempts to speak with Mr. Llano were fruitless based upon his lack of recollection of the incident. During the course of his sworn statement, Petitioner Robinson stated that he did not see Petitioner Osz slap

    Mr. Llano. Detention Deputy Potts, who was also in Cell 4 during

    the incident, also stated in his sworn statement that he did not observe Petitioner Osz slap Mr. Llano. During his sworn statement, Petitioner Osz denied that he ever struck Mr. Llano.

18. After completing its investigation, the Administrative Inquiry Division 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 the Administrative Inquiry Division and giving Petitioners the opportunity to respond further, the complaints against Petitioners were sustained.

19. Specifically, the violations determined to have occurred as to Petitioner Osz were:

    1. Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the 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, regulations, and operating procedures of the office of the Sheriff;

          
          

    2. Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness;

       
       

    3. Violation of PCSO Rule C1, V, A (Level Five Violation), 021, relating to custody of arrestees/prisoners;

       
       

    4. Violation of PCSO Rule C1, V, C (Level Three Violation), 060, relating to standard of conduct.

       
       

20. Under the PCSO Guidelines, a sustained finding of two Level Five violations and one Level Three violation is the basis for assigning 115 disciplinary points. As a result, Petitioner

    Osz was assessed 115 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 115 points to be a minimum discipline of a 15-day suspension and a maximum discipline termination. In the instant case, the discipline imposed against Petitioner Osz was termination.

21. Specifically, the violations determined to have occurred as to Petitioner Robinson were:

    1. Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the 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, regulations, and operating procedures of the office of the Sheriff;

          
          

    2. Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness;

       
       

    3. Violation of PCSO Rule C1, V, B (Level Four violation), 037, relating to reporting violations of laws, ordinances, rules or orders.

       
       

22. Under the PCSO Guidelines, a sustained finding of one Level Five violation and one Level Four violation is the basis for assigning 80 disciplinary points. As a result, in the instant case, Petitioner Robinson was assessed 80 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 80 points to be a minimum discipline of a 10-day suspension and a maximum

    discipline of termination. In the instant case, the discipline imposed against Petitioner Robinson was termination.

23. The conduct engaged in by Petitioner Osz in slapping Mr. Llano was unnecessary, excessive, did not constitute a good correction practice and is not consistent with the training or conduct expected of correctional officers.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1), Florida Statutes, and Chapter

    89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida. Petitioners, as sworn detention deputies with the PCSO, are charged with the responsibility of complying with all applicable state laws and regulations and operating procedures of that office.

25. Chapter 89-404, Section 6, Laws of Florida, authorizes the Sheriff to suspend, dismiss or demote classified employees

    
    

    for offenses enumerated therein. Subsections 4 and 5 provide in pertinent part the following:

    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.

    
    

    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.

    
    

26. 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 PCSO.

    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, 006 (Level Five Violation): Truthfulness - members are required to be truthful at all times when acting in an official capacity whether under oath or not, such as when offering testimony in legal proceedings and administrative investigations.

    3. Rule C-1, V, B, 037 (Level Four Violation): Reporting Violations of Laws, Ordinances, Rules, or Orders - Members knowing of other members violating laws, ordinances, rules, or orders of the agency shall report such violations in writing to their immediate supervisor of the Administrative Investigations Division.

       
       

    4. Rule C-1, V, C, 060 (Level Three Violation): Standards of Conduct - Members shall conduct their private and professional lives in such a manner as to not bring discredit to the Sheriff's Office.

27. Petitioner Osz is charged with violating the PCSO 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. Specifically, it is alleged that Petitioner Osz violated (1) Rule C-1, V, A, 021, by engaging in the use of physical force that was unnecessary; (2) Rule C-1, V, C, 060, which requires that members of the Classified Service "conduct their private and professional lives in such a manner as to not bring discredit to the Sheriff's Office;" and (3) Rule C-1, V, A, 006, which requires members of the Classified Service be "truthful at all times when acting in an official capacity, whether under oath or not, such as when offering testimony in legal proceedings and administrative investigations."

1. Petitioner Robinson is charged with violating the PCSO Civil Service Act by engaging in conduct unbecoming a public servant and violating the provisions of law or rules, regulations, and operating procedures of the Office of the Sheriff. Specifically, it is alleged that Petitioner Robinson violated: 1) Rules C-1, V, A, 006, relating to truthfulness, by being untruthful in the statements given during an interview by the Administrative Inquiry Division; and, 2) Rule C-1, V, B, 037, by failing to report a violation of a rules by a fellow detention deputy.

2. 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 349 (Fla 1st DCA 1977). Therefore, in order to prevail in this proceeding, Respondent is required to prove the charges against the Petitioners by a preponderance of the evidence.

3. Respondent has met his burden of proof in this case as to Petitioner Osz. The undisputed evidence established that Petitioner Osz slapped Mr. Llano, and that this conduct by Petitioner Osz was unnecessary, excessive, and did not constitute good correctional practice. Moreover, the undisputed evidence also established that when Petitioner Osz was interviewed about the incident, he was untruthful, denying that he had slapped

   Mr. Llano.

   
   

4. In light of the foregoing, Respondent has proven that Petitioner Osz committed the alleged offenses; and in doing so, violated the PCSO Civil Service Act and the PCSO rules as alleged.

5. The rules and regulations of the PCSO are divided into five categories ranging from Level One to Level Five, with violations of Level Five comprising the most serious discipline (PSCO File Index No. C-1, III). Given the point total, termination is within the prescribed disciplinary range for the offenses committed by Petitioner Osz and is appropriate in light

   of the facts of this case and the findings set forth above.

   
   

6. As to the allegations regarding Petitioner Robinson, Respondent has not sustained his burden. The specific provisions of law and rules cited in paragraph 21 which Petitioner Robinson is charged with violating are based on the assumption that Petitioner Robinson observed Petitioner Osz slap Mr. Llano. On the basis of this assumption, it was concluded that because Petitioner Robinson did not report the conduct, he acquiesced in Petitioner Osz' conduct. However, Respondent failed to establish that Petitioner Robinson observed Petitioner Osz slap Mr. Llano.

7. Officer Fitzgerald and Mr. Nichols, the only individuals who witnessed the incident, were unsure as to what Petitioner Robinson was doing at the time of the incident and whether he actually observed the incident. The evidence established that at the time of the incident, Petitioner Robinson was approximately five feet away from Mr. Llano and Petitioner Osz and was involved in putting property removed from Mr. Llano into a property bag located on a steel table or bench

   several feet away from the location of Mr. Llano and Petitioner Osz. Petitioner's testimony that he did not observe the incident is credible and was undisputed by Respondent.

8. Based on the foregoing, Respondent has failed to establish that Petitioner Robinson observed the slapping incident involving Petitioner Osz and Mr. Llano. Having failed to establish this underlying fact, Respondent has failed to prove

that Petitioner violated the rules and provisions of law as alleged.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Civil Service Board of the PCSO enter a Final Order: 1) finding Petitioner Osz guilty of the conduct alleged in the charging document; (2) upholding the termination of Petitioner Osz' employment as a detention deputy with the PCSO; (3) dismissing the charges against Petitioner Robinson; and, (4) reinstating Petitioner Robinson as a detention deputy with the PCSO.

DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1999.

COPIES FURNISHED:

William M. LauBach, Esquire Executive Director

Pinellas County Police Benevolent Association

3737 16th Street, North

St. Petersburg, Florida 33704

Jean H. Kwall, Esquire

Pinellas County Sheriff's Office Post Office Drawer 2500

Largo, Florida 33779-2500

Charles Osz, pro se

2545 Coachman Road Northeast Number 127

Clearwater, Florida 33765

Keith Tischler, Esquire

Power, Quaschnick, Tischler and Evans Post Office Box 12186

Tallahassee, Florida 32317

B. Norris Rickey

Office of Pinellas County Attorney

315 Court Street Clearwater, Florida 34616

William Repper, Chairperson Pinellas County Sheriff's Civil

Service Board Post Office Box 539

Clearwater, Florida 33757

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: 98-001889

Orders for Case No: 98-001889