STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, PINELLAS COUNTY ) SHERIFF, )

)

Petitioner, )

)

vs. ) Case No. 99-3980

)

JAY MCGATHEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this cause on November 18, 1999, in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William E. Laubach, Esquire

Pinellas County Police Benevolent Association

14450 46th Street, North Suite 115

Clearwater, Florida 33762

For Respondent: Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler and Evans Post Office Box 12186

Tallahassee, Florida 32317-2186 STATEMENT OF THE ISSUES

The issues for determination are: (1) Whether Respondent violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant; (2) Whether Respondent violated the Pinellas County Sheriff rule relating to

effectiveness in assigned duties; and (3) if so, what penalty is appropriate.

PRELIMINARY STATEMENT

By interoffice memorandum dated July 14, 1999, Detention Deputy Jay McGathey (Respondent), was notified by Sheriff

Everett S. Rice (Petitioner) that the Chain of Command Discipline Board determined that McGathey had violated the Pinellas County Sheriff's Office Civil Service Act and Rules and Regulations of the Pinellas County Sheriff's Office. Specifically, Respondent was charged with engaging in conduct unbecoming a public servant and violating Pinellas County Sheriff Office rules relating to effectiveness in assigned duties. Based on these charges, Respondent was given a three-day suspension.

Respondent challenged the charges and the penalty imposed and requested a formal hearing. On September 23, 1999, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing.

At hearing, Petitioner presented the testimony of five witnesses: Respondent Jay McGathey; Sergeant Wayne R. Poorman; Sergeant Richard Leach; Lieutenant Alan S. Harmer; and Captain Michael Casten. Petitioner also offered the depositions of Respondent and Robert W. McGuire, Jr. Petitioner offered and had

27 exhibits received into evidence. Respondent testified on his

own behalf and called one other witness, Robert McGuire. Respondent offered and had 3 exhibits received into evidence.

A Transcript of the proceeding was filed on December 8, 1999. Both parties filed Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Respondent is employed by Petitioner as a detention deputy and has been so employed for more than 11 years. At all times relevant hereto, Respondent was assigned to the Pinellas County Detention Center (Jail).

2. Detention deputies are correctional officers and, as is the case with all detention deputies, Respondent is responsible for the care, custody, and control of inmates incarcerated at the Jail.

3. On April 26, 1999, Respondent was assigned to the third shift, Special Operations Division, and was a corporal supervising the booking area. In connection with that assignment, Respondent's job responsibilities included booking inmates into the Jail. One part of the booking process required that detention deputies obtain certain information from individuals taken into custody in order to complete the necessary paperwork. While the information was being obtained, inmates are instructed to stand behind a blue line on the floor. As part of the booking process, detention deputies inventory the property in the possession of an inmate and make a written record of that

   property and "pat down" the inmate. Following these procedures, the inmate is seen by a nurse. However, if the nurse is unavailable, the inmate is told to wait in Pre-booking Cell 4 (Cell 4).

4. Detention Deputy Robert McQuire was also assigned to work the third shift in the booking area of the Special Operations Division on April 26, 1999.

5. On April 26, 1999, during the third shift, Jay McMillen (McMillen) was booked into custody at the Jail on the charge of driving without a valid driver’s license. Upon arrival at the Jail, he was taken to the booking area, instructed to stand behind the blue line on the floor near the counter in the booking area, and asked for information required to complete the inmate property form.

6. Both Respondent and McGuire participated in booking McMillen but McGuire asked the inmate most of the questions.

7. During the booking process, McMillen cooperated with Respondent and McGuire and provided the information required to complete the booking form. Moreover, McMillen complied with orders given to him by the detention deputies. Although McMillen occasionally wandered a few feet away from the booking counter, he would immediately return to the area behind the blue line when so instructed.

8. While being booked, McMillen never threatened either Respondent or McGuire. Furthermore, McMillen never physically

   resisted the actions of the detention deputies or exhibited physical violence.

9. During the course of the booking process, Respondent undertook a routine pat down search of McMillen. As a part of that process, McMillen again complied with Respondent’s instructions to assume the appropriate position. While engaging in the pat down, some slight movement of McMillen’s leg occurred. However, at the time of this movement by McMillen, Respondent took no action to restrain McMillen.

10. After the pat down was completed, McMillen was then told to sit on the bench in the booking area and to remove his shoes for inspection. McMillen immediately complied with this instruction. After Respondent completed the search of the shoes, he then ordered McMillen to have a seat in Cell 4. When Respondent ordered McMillen to Cell 4 to await nurse screening, McMillen complied with that order.

11. While McMillen was walking toward Cell 4, McMillen made a single verbal statement to Respondent. The statement by McMillen was inappropriate and unnecessary. In the statement, McMillen referred to Respondent as "bitch." In response to McMillen's statement, Respondent turned from his original direction of returning to the booking counter and followed McMillen into Cell 4. It was Respondent’s intent at that time to remove McMillen from Cell 4 and to transport him to C Wing, an

    area used for inmates who were agitated or upset and needed a "cooling down" period.

12. Respondent’s decision to remove McMillen from Cell 4 to the C Wing was based solely upon the tone of McMillen’s voice and was not the result of any aggressive physical act taken by McMillen or a verbal threat made by McMillen.

13. Respondent followed McMillen into Cell 4 without the benefit of assistance from another detention deputy. In fact, prior to acting upon his decision to remove McMillen from Cell 4, Respondent did not advise McGuire or any other detention deputy of his intent or ask for assistance.

14. Although Respondent did not advise any detention deputy that he was going into Cell 4, McGuire apparently observed Respondent proceeding toward Cell 4, and within approximately nine seconds, followed Respondent into the cell.

15. At the time Respondent entered Cell 4 there was another inmate in the cell.

16. Once in Cell 4, McMillen complied with Respondent’s instruction to face the wall and place his hands behind his back. However, while Respondent was handcuffing McMillen, McMillen exhibited an aggressive move toward him. As a result of McMillen's aggressive move, Respondent exercised force in restraining McMillen, engaging in an arm hold and forcing McMillen to the ground. Once on the ground, McMillen did not

    resist further and cooperated in the efforts of Respondent and McGuire to return him to his feet.

17. During the process of Respondent's utilizing this force, McMillen suffered a cut over his right eye that required medical attention. McGuire then assisted Respondent in the handcuffing and transporting of McMillen.

18. McMillen was then transported to C Wing where he was seen by a nurse, his restraints were removed, and he was left in a cell. McMillen did not resist further at that time and complied with the instructions of Respondent.

19. Following the incident described in paragraph 16, Respondent and McGuire reported the incident as a use of force. Their incident reports were reviewed by Respondent’s supervisor, Sergeant Richard Leach, who approved the use of force and completed his own report. Prior to completing his report, Sergeant Leach attempted to speak with McMillen, but McMillen refused to discuss the matter with him. Sergeant Leach discussed the incident with Respondent and McGuire, but did not review the videotapes of the pre-booking area for the time period during which the incident occurred. It was later that Sergeant Leach was advised there was a problem with regard to the use of force.

20. After reports were completed and submitted, the videotapes made in the pre-booking area of the incident were reviewed by Lieutenant Alan Harmer, pursuant to the procedures utilized at the Jail. Lieutenant Harmer also reviewed the

    incident reports prepared by Respondent and McGuire and the use- of-force report prepared by Sergeant Leach. Upon reviewing the tapes, Lieutenant Harmer determined that the events leading up to the use of force and the use of force itself violated Sheriff’s Office rules.

21. As a result of Lieutenant Harmer's preliminary determination, an internal investigation was conducted by the Administrative Inquiry Division (AID) of the Sheriff’s Office pursuant to the referral by Lieutenant Harmer. Sworn statements were taken by investigators, including statements of Respondent, McGuire, and the inmate in Cell 4 at the time of the altercation. In his sworn statement, Respondent alleged that McMillen was verbally abusive during the course of the booking process and that he further was uncooperative and had initiated an act of possible physical resistance by moving his leg in a manner possibly designed to strike Respondent.

22. After completing its investigation, the AID presented its entire investigative file to the Administrative Review Board (Board) without conclusion or recommendation. Sergeant Leach was among the officers sitting on the Board. Although Sergeant Leach had initially approved the use of force when he reviewed the reports of Respondent and McGuire, he voted to discipline Respondent based upon his observations from the videotapes of the incident.

23. The Board met and after reviewing the materials provided by AID and giving Respondent 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, General Order 3-1.3 (Level Three violation), 067, relating to a member’s effectiveness in their assigned duties.

       
       

       On April 26, 1999, you unnecessarily caused a use of force by entering a cell and confronting an inmate. Further, you exposed yourself to undue risk by entering the cell without appropriate back-up.

       
       

24. Under the Pinellas County Sheriff’s Office Guidelines, a sustained finding of one Level Three violation is the basis for assigning 15 disciplinary points. As a result, Respondent was assessed 15 disciplinary points. Sheriff’s Office General Order 10-2 identifies a disciplinary range for a total point assessment of 15 points to be a minimum discipline of a written reprimand and a maximum discipline of a three-day suspension. In the

    instant case, Respondent was assessed the maximum discipline, a three-day suspension.

25. The conduct engaged in by Respondent in following McMillen into Cell 4 and then engaging in a physical altercation with McMillen based solely upon a single comment by McMillen, regardless of the extent to which the comment constituted a vulgar insult directed toward Respondent, did not constitute a good correctional practice. Moreover, such conduct is not consistent with the training or conduct expected of correctional officers. The role of correctional officers in a volatile situation is to calm the situation and to maintain control, not to act to aggravate or to escalate the dispute or to allow the inmate to control the situation via verbal comments. Proper correctional practice would have been to allow McMillen to remain in Cell 4 for sufficient time to cool off and calm down before initiating further contact with him.

26. Similarly, the actions of Respondent in following McMillen into the cell by himself rather than obtaining assistance prior to entering the cell, are also contrary to good correctional practice. Again, this conduct by Respondent served only to potentially escalate and aggravate the confrontation, rather than to calm the situation. Moreover, it is also good correctional practice to have two detention deputies transport an inmate. This is particularly so considering the presence of another inmate in Cell 4 at the time Respondent entered the cell.

27. There was no need for Respondent to enter the cell with McMillen or to initiate physical contact with McMillen, and his actions are contrary to Pinellas County Sheriff's Office Policy and Procedure File Index No. DCB 9.29 that requires that detention deputies refrain from one-on-one confrontations with inmates that may lead to physical confrontations.

28. The actions of Respondent created a situation that led to a use of force and injury to McMillen that could have been avoided had Respondent effectively performed his duties as a detention deputy.

    CONCLUSIONS OF LAW

    
    

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

30. Chapter 89-404, Section 6, Laws of Florida, authorizes Petitioner, the Sheriff of Pinellas County, Florida, 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.

    
    

31. 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 rules, regulations, and policies which establish the standard of conduct which must be followed by all employees of the Pinellas County Sheriff’s Office.

32. Among the rules and regulations adopted by Petitioner pursuant to this authority is the following found under General Order 3-1:

    Rule 3-1.3, 5, c. (067) (Level Three Violation): All members will be effective in their assigned duties.

    
    

33. The complaint filed against Respondent alleges that Respondent violated the Pinellas County Sheriff’s 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.

34. 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, Petitioner is required to prove the charges against Respondent by a preponderance of the evidence.

35. In the instant case, the evidence established that Respondent allowed himself to become involved in a physical altercation with an inmate at the Jail that was unnecessary, based upon the conduct of the inmate prior to the action of Respondent. This conduct is unbecoming a public servant and, thus, violates the Pinellas County Sheriff's Office Civil Service Act. Chapter 89-404, Section 6, Laws of Florida.

36. The evidence also established that Respondent entered Cell 4 for the purpose of restraining and transporting McMillen without ensuring that Respondent had proper back-up. In placing himself in danger by engaging in this conduct, Respondent was ineffective in the performance of his assigned duties in violation of Pinellas County Sheriff's Office, Rule 3-1.3 5,c.(67), a Level Three violation.

37. Petitioner has met his burden in this case.

    
    

38. The rules and regulations of the Pinellas County Sheriff’s Office divide standards of conduct into five categories ranging from Level One to Level Five, with violations of Level Five comprising the most serious discipline. Pinellas County Sheriff’s Office General Order 3-1. Violations of different levels of conduct will result in the assignment of points with

    additional points being assigned based upon the number of violations proven.

39. Petitioner has proven that Respondent violated Pinellas County Sheriff's Office Rule 3-1.3, 5,c.(067), a Level Three violation. A substantiated charge of a Level Three violation results in assigning 15 points. Given the point total of 15, the prescribed description range for offenses committed by Respondent is from a minimum of a reprimand to a three-day suspension. Pinellas County Sheriff's Office General Order 10-2.

40. Given the prescribed point total of 15 assigned to the conduct and rule violations proven as to Respondent, a three-day suspension is within the prescribed disciplinary range for the offenses committed by Respondent.

RECOMMENDATION

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

RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff’s Office enter a final order finding Respondent guilty of the conduct alleged in the charging document and upholding Respondent’s suspension for three days from his employment as a detention deputy with the Pinellas County Sheriff’s Office.

DONE AND ENTERED this 10th day of February, 2000, 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 10th day of February, 2000.

COPIES FURNISHED:

William E. Laubach, Esquire Pinellas County Police

Benevolent Association 14450 46th Street, North Suite 115

Clearwater, Florida 33762

Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler and Evans Post Office Box 12186

Tallahassee, Florida 32317-2186

B. Norris Rickey, Esquire

Office of Pinellas County Attorney

315 Court Street Clearwater, Florida 34616

Jean H. Kwall, Esquire

Pinellas County Sheriff's Office Post Office Drawer 2500

Largo, Florida 33779-2500

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: 99-003980

Orders for Case No: 99-003980