STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVERETT S. RICE, PINELLAS COUNTY SHERIFF,

Petitioner,

vs.

JAMES B. MOORE,

Respondent.

)

)

)

)

)

) Case No. 00-0998

)

)

)

)

)

RECOMMENDED ORDER

Administrative Law Judge Daniel Manry conducted the administrative hearing of this case on May 31 and October 10, 2002, in Largo, Florida, on behalf of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith C. Tischler, Esquire

Powers, Quaschnick, Tischler, Evans & Dietzen

1669 Mahan Center Boulevard Tallahassee, Florida 32308

For Respondent: Laura Bamond, Esquire

Kevin Fariss, Esquire Al Miller, Esquire

Law Offices of Edward D. Foreman, P.A.

100 Second Avenue, North Suite 300

St. Petersburg, Florida 33701-3338

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant, and whether Respondent violated the Pinellas County Sheriff's Office rules and regulations; and, if so, whether the proposed penalty is

reasonable.

PRELIMINARY STATEMENT

On February 17, 2000, Petitioner notified Respondent that the Administrative Review Board (Board) had determined that Respondent violated the Pinellas County Sheriff's Office Civil Service Act and the Rules and Regulations of the Pinellas County Sheriff's Office. Petitioner notified Respondent that Petitioner intended to impose disciplinary action in the form of a five-day suspension, without pay, and to demote Respondent from his probationary rank of lieutenant to the rank of sergeant. Respondent timely requested an administrative hearing.

At the hearing, Respondent appeared with counsel. However, neither Respondent nor counsel participated in the hearing.

Instead, Respondent moved for a continuance by ore tenus motion made on the record on the ground that attorney Edward D. Foreman was the only attorney who could adequately represent Respondent and that Mr. Foreman was ill. Respondent's earlier written

motion for continuance on the same grounds had previously been denied by ALJ Carolyn S. Holifield. Respondent offered no new or additional grounds or proof at the hearing sufficient to warrant modifying the order previously entered by Judge Holifield.

ALJ Manry proceeded with the administrative hearing on May 25, 2000. Petitioner subsequently entered a Final Order

imposing the proposed agency action, and Respondent successfully appealed the final order. Petitioner then remanded the matter back to DOAH to conduct another administrative hearing.

The ALJ conducted a second hearing on May 31 and October 10, 2002. At the hearing, Petitioner presented the

testimony of five witnesses, submitted the deposition testimony of three witnesses, and submitted 19 exhibits for admission into evidence. Respondent called 10 witnesses and submitted six exhibits for admission into evidence.

The identity of the witnesses and exhibits and any rulings regarding each are set forth in the three-volume Transcript of the hearing filed on June 11 and October 17, 2002. Petitioner timely submitted its Proposed Recommended Order (PRO) on October 28, 2002. Respondent timely filed his PRO on

October 25, 2002.

FINDINGS OF FACT

1. Petitioner is a constitutional officer for the State of Florida, who is responsible for providing law enforcement and correctional services within Pinellas County, Florida. At all times pertinent to this case, Respondent was employed by Petitioner.

2. Effective January 31, 1999, Petitioner promoted Respondent from the rank of sergeant to the rank of lieutenant and assigned Respondent to the Corrections Training Section. Respondent reported to Director Herman Vincent. The promotion was subject to a one-year probationary period pursuant to Laws of Florida, Chapter 89-404, Section 4(3).

3. As a lieutenant, Respondent supervised a number of individuals of lesser rank that were responsible for other functions within the Training Section. Among those were Sergeant Wayne Poorman (Poorman), and Detention Deputies Mechelle Sabin (Sabin), Richard Main (Main), David Clarke (Clarke), and David Chant (Chant).

4. In May 1999, Petitioner reassigned Sabin from her position at the Detention and Corrections Bureau to the Corrections Training Section. Sabin had previously applied for the position and was recruited for the position by Respondent. Even before the selection process had begun, Respondent

   indicated his intention to select Sabin for the position in the Training Section.

5. In June 1999, while at lunch with Sabin, Respondent made unwanted and unsolicited sexual advances to Sabin. Respondent stated that he would "like to get into [Sabin's] pants" and made related statements. Respondent also engaged in other sexually related conversations with Sabin in which Respondent discussed his own sexual practices between himself and his wife and inquired of certain aspects of Sabin's sexual life with her husband. Sabin initially attempted to "laugh off" the statements of Respondent, but he returned to the subject again and again. Sabin ultimately rebuffed his advances.

6. Respondent did not renew his advances, but began to criticize Sabin and to question her work. None of Sabin's co- workers or her immediate supervisor, Poorman, were similarly critical of Sabin. They found her work to be at least satisfactory and oftentimes superior or excellent. Contrary to Respondent's characterization of Sabin as "resistant," Sabin's co-workers found her to be eager to help. Respondent could not identify any significant deficiency in Sabin's job performance.

7. Over time, Sabin grew uncomfortable in the presence of Respondent. Each of Sabin's co-workers observed the change in the working relationship between Sabin and Respondent. They further observed the apparent discomfort of Sabin while in the

   presence of Respondent and her reluctance to engage in eye contact with Respondent.

8. On one occasion, Respondent refused to assist Sabin in performing a new task with which she was unfamiliar. The task related to the processing of forms for new recruits. Instead of responding to her requests for guidance in processing the forms or telling her what to do with the forms, Respondent repeatedly stated ". . . think about it, Mechelle, you really need to tell me where this needs to go." Respondent did this in the presence of recruits whom Sabin was responsible for training.

9. On other occasions, Respondent chided Sabin for refusing to look him in the eye, and badgered her to a degree beyond what any of her co-workers deemed appropriate and in a manner unlike that demanded of other employees. On one occasion, the badgering escalated to the point that Respondent "got in Sabin's face" and backed her down a hallway as he spoke to her.

10. Respondent disapproved of a request by Sabin to assist in and attend a meeting regarding a field-training program. Respondent made comments about the sexual orientation of the sergeant with whom Sabin sought to work.

11. On another occasion, Respondent asked Sabin to leave a room ahead of others. Respondent explained to everyone in the

    room, including Sabin, that ". . . the view was better from behind."

12. In August 1999, Poorman asked Sabin to teach a class for him due to a conflict in Poorman's schedule. Poorman neglected to advise Respondent of the change in assignment. When Respondent subsequently looked for Sabin at the office, he was unable to locate her. At a later meeting of the training staff, Respondent complained that Sabin had not made Respondent aware of the schedule changes. When Poorman sought to defend Sabin and advise Respondent that the error was his, Respondent responded by stating, ". . . don't fucking stick up for her. She has a goddamn mouth. She can speak for herself if she has something to say." The comments were made in the presence of other persons assigned to the Training Section.

13. On another occasion, Sabin agreed to perform a task related to completing forms for recruits to obtain their gym clothes. Respondent refused to provide Sabin with the paperwork she needed to complete the task.

14. When explaining tasks to Sabin, Respondent repeatedly asked in a demeaning manner, "Do you understand what I am saying to you?" Respondent engaged in other behavior toward Sabin in the presence of other employees that was demeaning and disrespectful. Respondent did not engage in similar treatment of other personnel in the Training Section. Respondent

    contended that Sabin needed to be "toughened up." However, no other supervisor perceived such a need. Sergeant Poorman was Sabin's immediate supervisor and Respondent's immediate subordinate and was unable to resolve the conflict.

15. After Respondent repeatedly asked Sabin if she wanted to transfer out of the Training Section, Sabin requested reassignment from the Section in an effort to escape the environment. Respondent then sought to enforce a one or two- year commitment to the Training Section that was customary for those transferring into the Section. This occurred during a meeting between Respondent, Sabin, and Poorman. After further discussion, Respondent agreed to allow Sabin to remain in the unit for the remainder of her one-year commitment. However, Respondent later stated to Poorman that Respondent wanted to transfer Sabin back to the jail if Sabin requested reassignment to a position in road patrol.

16. At this point, Sabin told Poorman of the advances made by Respondent and of the conduct that followed. Poorman reported the matter to Director Vincent who was Poorman's supervisor. Director Vincent contacted the Inspections Bureau, Administrative Inspections Division of the Pinellas County Sheriff's Office. The Administrative Inspections Division conducted an investigation into the conduct of Respondent.

17. The initial allegations against Respondent included charges that Respondent propositioned Sabin and made other inappropriate comments to her with regard to his sexual life and practices and with regard to her sexual life and practices. Subsequently, and during the course of the investigation, additional allegations were made against Respondent.

18. The subsequent allegations charged that Respondent treated Sabin more harshly than her male counterparts after she rebuffed his advances. The allegations also charged that Respondent made derogatory comments about another female employee, Donna Hughey. Respondent allegedly stated that Hughey had engaged in inappropriate conduct in order to obtain a desired assignment.

19. Petitioner expanded the scope of the investigation conducted by the Administrative Inspections Division to include the new allegations. Representatives of the Administrative Inspections Division notified Respondent of the new allegations prior to his interview.

20. During the course of interviews with other persons assigned to the Training Section, it was revealed that Respondent stated to Sabin that on one occasion a female applying for a position with the Petitioner placed her head in his lap and made reference to what she would do to obtain the position sought. In his statement to Sabin, Respondent did not

    identify the person who engaged in this conduct, but did describe a female applying for the position in the Training Section. In a similar statement to Poorman, Respondent identified the female applying for the Training Section as Donna Hughey. Respondent cautioned each of these persons against telling anyone else. Hughey denied ever engaging in such conduct and expressed a desire to file a complaint with regard to these allegations made by Respondent.

21. As a result of the investigation, Respondent was provided a Board hearing concerning the charges against him. At the conclusion of the hearing, the Board determined that Respondent violated portions of the Pinellas County Sheriff's Office Civil Service Act and the Rules and Regulations of the Pinellas County Sheriff's Office.

22. The Board determined that Respondent committed three violations. First, Respondent violated 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, provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff by engaging in conduct unbecoming a public servant. Second, Respondent violated Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (a Level Three violation), 060, by bringing discredit to the agency as a result of inappropriate comments to and about other

    members, i.e., Donna Hughey. Third, Respondent violated Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (a Level Three violation), 069, by failing to treat Sabin with appropriate respect.

23. The Board did not discipline Respondent for the conduct related to unwelcome and unsolicited sexual remarks made to Sabin. The Board found those charges were unsubstantiated by the investigation.

24. The violations resulted in a cumulative point total of

    
    

    25 points. A 25-point violation authorizes a suspension without pay of up to five days. Respondent had no prior discipline during the course of his employment with Petitioner.

25. The Board imposed disciplinary action of a five-day suspension which is the maximum discipline allowed under Petitioner's rules. The Board based its decision on the nature of Respondent's conduct, his status as a supervisor, and his rank. The Board also demoted Respondent to the rank of Detention Sergeant and assigned him to the Detention and Corrections Bureau of the Pinellas County Sheriff's Office.

26. During the investigation, the Board extended Respondent's one-year probationary period in his promoted position of lieutenant for an additional six months until July 31, 2000. Pursuant to Laws of Florida, Chapter 89-404, Section 4(4), it is within the discretion of Petitioner to

    extend the probation of a promoted employee for six months beyond the initial one-year probationary term. Respondent remained in the extended probationary rank of lieutenant at the time of his Board hearing and at the time of the imposition of discipline by Petitioner.

27. The nature of the conduct engaged in by Respondent, particularly as it related to his actions and methods as a supervisor, warranted a five-day suspension without pay and the loss of Respondent's promotion. Respondent engaged in a method of supervision designed less to train and guide and more to intimidate and control. Since Respondent's demotion and reassignment from the Training Section, the Section again operates as a team without the level of agitation seen during Respondent's tenure as supervisor.

28. A five-day suspension conforms with the matrix prescribed in General Order 10-2 of the Pinellas County Sheriff's Office (Point Scale). The Point Scale provides that two violations of Level Three offenses warrant 25 disciplinary points. Carry-over points from prior disciplinary history are added to the disciplinary points for the current violation to arrive at the total disciplinary points. Respondent had no prior discipline and no carry-over points.

29. Petitioner chose the maximum penalty authorized in the Point Scale based on Respondent's supervisory status, the nature

    of the offense, and the subordinate status of the victim. The proposed penalty is consistent with penalties that Petitioner has imposed in previous cases involving similar facts.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties in this proceeding. Sections 120.57(1) and 120.68(8), Florida Statutes (1999), and Chapter 89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida. The parties had adequate notice of the hearing.

31. The burden of proof 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). Petitioner must prove the charges against Respondent by a preponderance of the evidence. Petitioner satisfied its burden of proof.

32. Chapter 89-404, Section 6, Laws of Florida, authorizes Petitioner to suspend, dismiss, or demote classified employees for prescribed offenses. In pertinent part, Section 6 provides:

    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.

       
       

33. Chapter 89-404, Section 2, Laws of Florida, authorizes the Sheriff to adopt rules and regulations needed to implement the applicable law. Pursuant to that authority, Petitioner has adopted rules, regulations, and policies that prescribe a standard of conduct which must be followed by all employees of the Pinellas County Sheriff's Office.

34. General Order 3-1 adopts various rules and regulations. Respondent violated Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three violation), 060, relating to standard of conduct, by bringing discredit to the agency as a result of inappropriate comments to and about other members. Respondent violated Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three violation), 069, relating to conduct toward superior and subordinate officers and associates, by failing to treat subordinates with the appropriate respect.

35. Respondent engaged in a course of conduct toward Sabin, a subordinate, that was disrespectful, demeaning, and designed to make her work environment as unpleasant as possible. Respondent's actions were particularly egregious in a public setting that included those whom Sabin was to teach and her peers. Respondent's actions and attitude toward Sabin were different than the attitude Respondent displayed toward other persons employed in the Training Section. Respondent's actions and attitude reflect a style of supervision not designed to enhance the work environment or to further the purposes of Petitioner, but to pursue a personal agenda.

RECOMMENDATION

Based upon 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 Respondent guilty of the conduct alleged in the charging document, suspending Respondent for five days without pay from his employment with the Pinellas County Sheriff's Office, and demoting Respondent from his probationary rank of lieutenant to the rank of sergeant.

DONE AND ENTERED this 5th day of December, 2002, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 5th day of December, 2002.

COPIES FURNISHED:

Edward D. Foreman, Esquire

Law Offices of Edward D. Foreman, P.A.

100 Second Avenue, North Suite 300

St. Petersburg, Florida 33701-3338

Keith C. Tischler, Esquire Powers, Quaschnick, Tischler,

Evans & Dietzen

1669 Mahan Center Boulevard Tallahassee, Florida 32308

B. Norris Rickey, Esquire Office of County Attorney

315 Court Street Clearwater, Florida 34616

Laura Bamond, Esquire Kevin Fariss, Esquire Al Miller, Esquire

Law Offices of Edward D. Foreman, P.A.

100 Second Avenue, North Suite 300

St. Petersburg, Florida 33701-3338

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: 00-000998

Orders for Case No: 00-000998