STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF TARPON SPRINGS, )
)
Petitioner, )
)
vs. ) Case No. 09-3327
)
DENISE GENEREUX, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on March 17, 2010, in Tarpon Springs, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Florida Division of Administrative Hearings.
APPEARANCES
For Petitioner: Erin G. Jackson, Esquire
Thompson, Sizemore, Gonzalez & Hearing, P.A.
201 North Franklin Street Suite 1600
Tampa, Florida 33602
For Respondent: Denise Genereux, pro se
3858 Haven Drive
New Port Richey, Florida 34652 STATEMENT OF THE ISSUE
Whether the Respondent committed the violations alleged in the Interdepartmental Memorandum on Internal Investigation #381,
dated May 6, 2009 and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
In an Interdepartmental Memorandum on Internal Investigation #381 dated May 6, 2009, Captain Robert Kochen, Acting Chief of Police of the City of Tarpon Springs, Florida ("City"), advised Denise Genereux that, based on his examination of the documents related to Internal Investigation #381 and on his consideration of the information she had provided at the
pre-disciplinary hearing conducted May 4, 2009, he had concluded that Ms. Genereux had violated Tarpon Springs Police Department General Orders 101.35, 112.203, 341.07, and 341.11. Acting Chief Kochen noted that this violation constituted the third violation of Tarpon Springs Police Department General Orders ("General Orders") within a three-month period, and he advised Ms. Genereux that her employment with the Tarpon Springs Police Department would be terminated pursuant to Rule 18 of the City's Personnel Rules and Regulations because she was not working/performing her duties up to the required standards.
The Interdepartmental Memorandum contained a notice of the right to appeal the decision, and Ms. Genereux timely requested an administrative hearing pursuant to Article III, Section 1, of the Civil Rules of Procedure for the City of Tarpon Springs.
The matter was referred to the Florida Division of
Administrative Hearings for assignment of an administrative law judge to conduct the proceedings pursuant to Article IV, Section 1, of the Civil Rules of Procedure for the City of Tarpon Springs, and the Administrative Law Judge Services Contract No. C-034 between the Florida Division of Administrative Hearings and the City of Tarpon Springs.
The final hearing was held on March 17, 2010. At the hearing, the City presented the testimony of Sergeant Edward Miller, Captain Jeffrey Young, Acting Police Chief Robert Kochen, and Ms. Genereux. Petitioner's Exhibits 1 through 11 were offered and received into evidence. Ms. Genereux testified in her own behalf, and Respondent's Exhibit 1 was offered and received into evidence.
The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on March 31, 2010.
Ms. Genereux has not, to date, filed a post-hearing submittal. The City timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Ms. Genereux began working as a dispatcher for the City Police Department in March 2007. She had previously worked for
14 months as a dispatcher for the City of New Port Richey, Florida ("New Port Richey"), Police Department.
When she was hired as a dispatcher for the New Port Richey Police Department, Ms. Genereux participated in a 16-week training program. She was, therefore, familiar with the duties of a dispatcher and was familiar generally with the protocols for handling telephone calls when she was hired as a dispatcher by the City's Police Department.
Ms. Genereux was given 10-to-12 weeks of training in the protocols of the City Police Department. She had three trainers who were dispatchers with the City's Police Department, and she was tested on all aspects of her training. She learned to use the Computer-Assisted Dispatch ("CAD") system used by the City's Police Department, and she studied the codes and signals used in her new job, as well as street maps of the City.
Ms. Genereux's duties included answering two 911 emergency telephone lines, two recorded non-911 emergency telephone lines, and four non-recorded telephone lines. Among other things, she was responsible for taking calls for service from citizens and other departments in the City government, dispatching police officers on calls, performing warrant checks,
and entering descriptions of stolen articles into the computer system.
The City's disciplinary rule
As a dispatcher for the City Police Department, Ms. Genereux was considered an employee of the City.
Rule 18 of the City's Personnel Rules and Regulations ("Rule 18") governs the discipline of City employees. Section 1 of Rule 18 lists offenses that constitute just cause for suspension, demotion, or dismissal of employees. Section 1(b) provides that an employee may be suspended, demoted, or dismissed from employment if that employee is found to be "incompetent or inefficient in the performance of the duties of his position (specific instances to be charged)."
Section 2 of Rule 18 establishes guidelines for disciplinary action and provides in pertinent part:
The Guidelines are divided into five (5) levels which reflect the seriousness of the offenses. In each level and for each infraction, consideration will be given to the severity of the offense, the actual or potential cost or damage involved, time interval between infractions, the length and quality of service records and any other pertinent matters. In imposing disciplinary action on a current infraction or offense, the City will not take into consideration any prior infractions of City or departmental rules which occurred more than two years previously.
Section 2 of Rule 18 contains a chart assigning point values to offense levels. The explanation of the chart provides that "any employee who is assessed disciplinary action totaling the equivalent of 60 points within any 24 consecutive month period is subject to dismissal." Points are not assigned for written warnings or reprimands.
The failure of "[p]roductivity, workmanship, or efficiency [to be] up to required standards of performance" is listed in the Guidelines for Disciplinary Action as a Level 3 offense. An employee who is disciplined for a Level 3 offense is assigned 20 points.
Internal Investigation #381
On April 3, 2009, Ms. Genereux was particularly busy on her shift, which was at night. She received a 911 call from a male reporting that a female was chasing him with a knife.
Ms. Genereux made notes with details about the call in the computer and broadcast over the radio that she was "holding" two disturbances. This alerted police officers to check the notes in their in-car computers for details. Ms. Genereux did not dispatch this call by voice dispatch, which should always be done whenever a suspect is armed to alert officers responding to the call. Ms. Genereux also included the wrong address in her notes, and the responding officer went to South Pinellas Avenue
instead of North Pinellas Avenue, which was the address given by the caller.
Almost immediately after advising officers that she was holding two disturbances, Ms. Genereux stated over the radio that she also had a call regarding a retail theft at a Publix store, where the suspect had run out the back of the store and was being chased by store employees. A detective, who was on his way to assist with the investigation of a death, advised
Ms. Genereux that he was in the vicinity of the Publix store, and he asked Ms. Genereux for a description of the suspect.
Ms. Genereux advised the detective that the description was in her notes of the call. Detectives did not, however, have computers in their car, and the detective at Publix was not able to obtain a description of the subject.
On the night of April 3, 2009, officers of the City Police Department were investigating the death of a young man. Ms. Genereux received a telephone call from a person who identified herself as the mother of the man's girlfriend, and she asked for information regarding the death. Ms. Genereux told the woman that the man had committed suicide with a gun. The information provided to the caller was incorrect in that the man's death was not caused by a gun and, because the investigation was ongoing, it had not been concluded that the death was a suicide. Finally, Ms. Genereux did not ascertain
prior to giving out the information regarding the dead man if his identity had been established or if the next-of-kin had been notified of the death.
General Order #101.35 provides in pertinent part:
Security of Departmental Business[.] Members shall not reveal police information outside the department except as provided elsewhere in this manual or as required by law or supervisory authority. Members
will not release the name of a person killed by a criminal act or accident until identification has been verified and next of kin has been notified.
General Order #112.203 provides in pertinent part: "Information defined as exempt by law and not subject
to disclosure under our policy: 1. Active criminal intelligence information and active criminal investigative information[.] "
General Order #341.07, Obtaining Caller Information, provides in pertinent part: "Communication members will utilize the CAD system for assistance in collecting the proper information for the call being received. "
General Order #341.11, General Procedures, provides in pertinent part:
The following procedures will govern all radio communications by communications personnel.
* * *
4. Radio operators will maintain a professional, businesslike, yet courteous, demeanor while transmitting.
* * *
7. Radio transmissions should include only that information which is necessary for the officer in the field to handle the situation safely and effectively. Radio operators should neither ad-lib nor speculate.
* * *
12. Communication operators will attempt to obtain any additional pertinent information requested by field units, which is unavailable to the officer in the field.
The facts found above do not support a violation of General Order #341.11, subsection 4. The facts do, however, establish that Ms. Genereux violated General Orders #101.35, #112.203, #341.07, and #341.11, subsections 7 and 12. Pursuant to the Guidelines for Disciplinary Action in Section 2 of
Rule 18, Ms. Genereux committed a Level 3 violation in that the violations of the Police Department General Orders demonstrate that Ms. Genereux was not competent in the performance of her duties of dispatcher for the City Police Department. Twenty disciplinary points are assigned to the violation.
Prior discipline
Ms. Genereux received a written reprimand on February 25, 2009, from Acting Chief Kochen for failing to dispatch a police officer to respond to a hit-and-run traffic
crash complaint made on January 24, 2009. Ms. Genereux was also to be re-trained on General Orders 251.08 and 101.31, the General Orders she was found to have violated, and was subject to periodic evaluations for 60 days to ensure that her performance was meeting expectations.
On April 9, 2009, Ms. Genereux was suspended without pay for a period of three days by Acting Chief Kochen, after having waived her right to a pre-disciplinary meeting. Two incidents were combined into one for purposes of this disciplinary action, as set forth in the Interdepartmental Memorandum on Internal Investigation #378. The first incident occurred on March 10, 2009, when Ms. Genereux failed to obtain necessary information during a telephone call in which the caller reported a man with gun in his neighborhood. The second incident occurred on March 23, 2009, when Ms. Genereux failed to get necessary information regarding a burglary in progress prior to disconnecting the call. Acting Chief Kochen found that these actions violated General Orders #341.07 and #341.11 and constituted a Level 3 violation of Rule 18 because
Ms. Genereux's productivity, workmanship, and efficiency were not up to the required standards of performance. Consistent with the Guidelines for Disciplinary Action, Ms. Genereux received 20 disciplinary points. She did not appeal the suspension.
On April 23, 2009, Ms. Genereux was suspended without pay for a period of five days by Acting Chief Kochen, after she participated in a pre-disciplinary hearing. As set forth in the Interdepartmental Memorandum on Internal Investigation #382,
Ms. Genereux was suspended because of an incident that occurred on March 24, 2009, when she failed to dispatch officers for
17 minutes after receiving a telephone call reporting that a 10- year-old child had run out of his house and was missing. The child had recently returned home from having been "Baker Acted" for attempting suicide, and the call was a high priority call that should have been dispatched immediately. Acting Chief Kochen found that this action violated General Order #223.073 and was a Level 3 violation of Rule 18 because Ms. Genereux's productivity, workmanship, and efficiency were not up to the required standards of performance. Consistent with the Guidelines for Disciplinary Action, Ms. Genereux received
20 disciplinary points. She did not appeal the suspension.
During January, February, March, and April 2009,
Ms. Genereux was experiencing confusion and was unable to focus her attention. Ms. Genereux suspected that she was suffering from high blood pressure and checked her blood pressure frequently at her pharmacy. Ms. Genereux did not seek medical care but was treating herself with vitamins and homeopathic remedies.
Ms. Genereux did not advise her supervisors that she believed she had a medical problem until April 22, 2009, at the pre-disciplinary hearing related to her failure to dispatch the call on March 24, 2009, regarding the lost child. Ms. Genereux ultimately consulted a general practitioner about her problem on May 5, 2009, the day after the final pre-disciplinary hearing on the April 3, 2009, incidents. She had also arranged an appointment with a neurologist for the following week.
Although Ms. Genereux may have been suffering from a medical condition that affected her ability to perform her duties as a police dispatcher, she did not seek medical attention or advise her supervisors of the problem until she had committed a number of serious violations of the City Police Department General Orders, violations that potentially could have endangered the lives of the officers and citizens. The fact that Ms. Genereux may have been suffering the effects of high blood pressure does not mitigate the seriousness of her violations or excuse the violations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.65(7), Florida Statutes (2009); Administrative Law Judge Service Contract
No. C-034; and Article IV of the City of Tarpon Springs Civil Service Rules of Procedure.
Article III, Section 1 of the City's Civil Service Rules of Procedure provides that permanent, non-exempt employees have the right to appeal to the Civil Service Board decisions to terminate or suspend an employee. Pursuant to Article III, Section 1(c) of the City's Civil Service Rules of Procedures, the Civil Service Board may choose to refer the appeal to the Florida Division of Administrative Hearings for appointment of an administrative law judge to conduct the hearing on the appeal in accordance with the provisions of Article IV of the City's Civil Service Rules of Procedure. In such appeals, "[t]he burden to establish the case for overruling or modifying the decision by the City shall be on the appealing employee."
Based on the findings of fact herein, Ms. Genereux committed three Level 3 offenses within a three-month period. She accumulated a total of 60 disciplinary points, and, consistent with the Guidelines for Disciplinary Action contained in Section 2 of Rule 8, the discipline that should be imposed on Ms. Genereux for the violation established with respect to Internal Investigation #381 is termination of her employment with the City. Ms. Genereux failed to present a creditable basis for mitigating this disciplinary action.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tarpon Springs, Florida, enter a final order finding Denise Genereux in violation of the City of Tarpon Springs Police Department General Orders #101.35, #112.203, #341.07, and #341.11(7) and (12) and terminating her employment as a dispatcher with the City of Tarpon Springs Police Department.
DONE AND ENTERED this 29th day of April, 2010, in Tallahassee, Leon County, Florida.
PATRICIA M. HART
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 29th day of April, 2010.
COPIES FURNISHED:
Erin G. Jackson, Esquire
Thompson, Sizemore, Gonzalez & Hearing, P.A. Post Office Box 639
Tampa, Florida 33602
Denise Genereux 3858 Haven Drive
New Port Richey, Florida 34652
Mark G. LeCouris, City Manager City of Tarpon Springs
324 East Pine Street
Tarpon Springs, Florida 34689
Civil Service Board
c/o City of Tarpon Springs
324 East Pine Street
Tarpon Springs, Florida 34689
| Issue Date | Document | Summary |
|---|---|---|
| May 27, 2010 | Agency Final Order | |
| Apr. 29, 2010 | Recommended Order | Respondent committed violation of Police Department General Orders and, because of two prior disciplinary actions within previous three months, her employment as a dispatcher with the City Police Department should be terminated. |
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